Affirmed and Memorandum Opinion filed October 16, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00833-CR
NO. 14-12-00834-CR
HIRAM BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13
Harris County, Texas
Trial Court Cause Nos. 1806917 & 1806918
MEMORANDUM OPINION
Appellant Hiram Brown was found guilty by a jury of two counts of
misdemeanor assault. Based on the State’s agreed recommendation on punishment,
the trial court sentenced appellant to concurrent terms of one year’s confinement in
the county jail for each offense. On appeal, appellant contends that he was
egregiously harmed by an erroneous charge in one of the cases and that the trial
court abused its discretion by preventing cross-examination of a witness as to
possible interest, bias, or motive in violation of his constitutional right to
confrontation of witnesses. We affirm.
FACTUAL BACKGROUND
On January 28, 2012, complainants Jeremy Alsobrook and his girlfriend,
Serena Wolfgang, decided to go on a double date with appellant and Serena’s
friend, Starla Tise. Jeremy and Serena drove Starla’s car to Tia Maria’s restaurant
in Houston, where Starla and appellant were already eating and drinking. During
dinner, an argument ensued between Starla and appellant, and Starla slapped
appellant’s face. Jeremy and Serena decided to leave the restaurant with Starla.
Before Starla could start her car, however, appellant grabbed her electronic car
key, threw it on the ground, and broke it.
At that point, Serena called the police and Jeremy called his brother,
Brandon Alsobrook, to come and pick them up. When Brandon arrived in his two-
door Acura coupe, everyone got in his car. Jeremy sat in the front passenger seat,
while Serena sat behind Jeremy and Starla sat behind Brandon. As they left the
restaurant, appellant began following them in his white Hummer, honking his horn
and trying to phone both Starla and Serena. Serena again attempted to call the
police.
At a red light, appellant pulled up next to their car, got out, and approached
the passenger-side door of the Acura. As he approached, appellant appeared very
angry, and was yelling, screaming, and cursing. Appellant opened the passenger
door where Jeremy was seated, placed his hands on top of the car, and kicked
Jeremy in the face, splitting his lip. Serena, who had reached forward with her
hand in an attempt to shield recent stitches on Jeremy’s face, was also struck by
appellant’s kick. Serena suffered a sprained thumb and sought medical treatment a
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few days later when the pain did not subside. Medical records supporting Serena’s
account were admitted into evidence without objection.
After kicking Jeremy and Serena, appellant pointed toward Starla and
ordered her to “come the f- - k with me.” Appellant returned to his Hummer in an
excited state, saying, “If you think this is funny, I’m going f- - king shoot you” as
he reached into his glove compartment. At that point, Brandon decided to run the
red light. Appellant continued to pursue them, but they eventually eluded appellant
on the freeway. The group pulled into a gas station and informed the police of their
location.
Officer David Rodriguez met with the complainants at the gas station.
During Rodriguez’s investigation, appellant called Serena’s cell phone. When
Rodriguez answered the phone, appellant threatened to “kick [his] ass” before
Rodriguez could identify himself. Appellant was eventually picked up by a
different police unit and taken to the gas station. Rodriguez did not observe any
defensive wounds on appellant.
At trial, appellant pleaded “not guilty” to assaulting Jeremy and Serena and
presented two witnesses in his defense. Robert Garza testified that appellant had
called him that night and asked him to come to Tia Maria’s because Starla,
Robert’s cousin, had assaulted him. When Robert and his girlfriend, Miranda
Billings, arrived at the restaurant’s parking lot, Starla and the others were just
leaving. Appellant got into his car to follow them, and Robert followed behind
appellant. At the red light, Robert saw Jeremy get out of the Acura and open
appellant’s car door. A struggle ensued, and appellant’s foot came out to repel
Jeremy before appellant shut the door. Miranda testified that she too saw Jeremy
get out of his car and try to open appellant’s car door, but she did not see what
transpired after that.
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Although the jury was instructed on self-defense, appellant was found guilty
of assaulting both Jeremy and Serena. This appeal followed.
ANALYSIS OF APPELLANT’S ISSUES
In his first issue, appellant contends that the trial court submitted a defective
jury charge in Jeremy’s case, which was not objected to, and which caused
appellant egregious harm. In his second issue, appellant contends that the trial
court erred by refusing to allow him to ask the questions necessary to lay the
predicate for cross-examining Serena as to possible bias, in contravention of his
Sixth Amendment right to confrontation of witnesses and Texas Rule of Evidence
613(b).
I. Charge Error
The court’s charge authorized the jury to find that appellant intentionally or
knowingly caused bodily injury to Jeremy Alsobrook by kicking him with his foot.
The Texas Penal Code provides that a person commits an offense if the person
“intentionally, knowingly, or recklessly causes bodily injury to another.” See Tex.
Penal Code § 22.01(a)(1).
The abstract portion of the charge correctly defined “knowingly” to mean
that “[a] person acts knowingly or with knowledge with respect to a result of his or
her conduct when he or she is aware that his or her conduct is reasonably certain to
cause the result.” But the charge defined “intentionally” to mean that “[a] person
acts intentionally, or with intent, with respect to a result of his or her conduct when
it is his or her conscious objective or desire to engage in the conduct or cause the
result” (emphasis added). Appellant argues that, because assault requires the
conscious objective or desire to cause the result rather than the conduct, the
incorrect definition of “intentionally” in the abstract portion of the court’s charge
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resulted in egregious harm because it permitted the jury to convict him of assault if
it found that he intended to engage in conduct which caused bodily injury,
regardless of whether he intended to cause the result.
The State concedes the charge was erroneous. See Landrian v. State, 268
S.W.3d 532, 536 (Tex. Crim. App. 2008) (stating that assault as defined in Tex.
Penal Code § 22.01(a)(1) is a result-oriented offense); Cook v. State, 884 S.W.2d
485, 490 (Tex. Crim. App. 1994) (holding that trial judge erred in not limiting the
culpable mental states to the type of offense charged). Nevertheless, the State
argues that appellant suffered no egregious harm as a result of the error.
When, as here, no objection to an alleged jury charge error was made at trial,
the appellant must show that the error is so egregious and created such harm that
he did not have a fair and impartial trial. See Warner v. State, 245 S.W.3d 458, 461
(Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985)). Error creating egregious harm is also described as error that goes to
the very basis of the case, deprives the appellant of a valuable right, or vitally
affects a defensive theory. Id. at 461–62. To determine egregious harm, we
examine the entire jury charge, the state of the evidence, including the contested
issues and weight of the probative evidence, the arguments of counsel, and any
other relevant information revealed by the record of the trial as a whole. Id. at 461.
Looking to the charge as a whole, the application paragraph instructed the
jury as follows:
Now, therefore, if you believe from the evidence beyond a reasonable
doubt that on or about the 28th day of January, 2012, in Harris County
Texas, the defendant, Hiram Brown, did unlawfully intentionally or
knowingly cause bodily injury to Jeremy Alsobrook, hereinafter
styled the Complainant, by kicking the Complainant with his foot, you
shall find the defendant guilty.
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Although appellant argues that the application paragraph does not cure the error in
the abstract paragraph, the court’s charge correctly instructed the jury to convict
only if it determined that appellant intentionally or knowingly caused the result of
bodily injury, consistent with the statutorily prohibited conduct. See Tex. Penal
Code § 22.01(a)(1). When the application paragraph correctly instructs the jury on
the law applicable to the case, this mitigates an erroneous definition in the abstract
portion of the charge. See, e.g., Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim.
App. 1999); Williams v. State, 226 S.W.3d 611, 618 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); see also Delgado v. State, 944 S.W.2d 497, 499 (Tex. App.—
Houston [14th Dist.] 1997, pet. ref’d) (holding appellant charged with assault was
not egregiously harmed when correct application paragraph “appropriately limited
the overbroad language” in court’s definitions and the State did not emphasize the
“nature of conduct” language in its jury argument).
Turning to the state of the evidence, appellant argues that all of the evidence
presented by both parties went to either appellant’s or Jeremy’s conduct.
According to appellant, the only evidence of the result of the conduct—Jeremy’s
bodily injury—was Jeremy’s testimony that it “hurt a little” and Brandon’s
testimony that the kick “busted [Jeremy’s] lip open and “hurt his teeth and gums.”
Appellant asserts that, because the charge failed to require evidence that appellant
intended to cause Jeremy bodily injury, the jury was erroneously authorized to
convict appellant solely on the evidence of appellant’s conduct.
However, appellant’s intent was not a contested issue at trial. Appellant’s
defense was not that he had inadvertently caused Jeremy bodily injury or that he
otherwise lacked the requisite mental state to commit the charged offense; instead,
appellant’s theory was that he kicked Jeremy in self-defense. Consequently,
throughout the trial and during closing arguments, the parties focused on the
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credibility of the witnesses and the plausibility of their versions of the events, not
on whether appellant possessed the culpable mental state required to commit
assault. Further, appellant concedes that neither the State nor the defense addressed
appellant’s intent to cause bodily injury in their closing arguments, and our review
of the record reveals no other relevant information having any bearing on this
issue.
Taking into consideration the relevant factors, we hold that the erroneous
definition of “intentionally” in the abstract portion of the jury charge did not
egregiously harm appellant. We overrule his first issue.
II. Limitation on Cross-Examination
In his second issue, appellant contends that the trial court abused its
discretion in preventing cross-examination of complainant Serena Wolfgang as to
her possible interest, bias, or motive to slant her testimony against him in violation
of appellant’s Sixth Amendment right of confrontation under the United States
Constitution and Texas Rule of Evidence 613(b). In particular, appellant complains
that he was not permitted to question Serena concerning a possible lawsuit against
him arising from her thumb injury and allegations that while previously living with
appellant she took appellant’s and his daughter’s belongings and pawned them.
A. Applicable law
The Confrontation Clause of the United States Constitution guarantees a
defendant the right to cross-examine witnesses. See U.S. Const. amend. VI;
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Exposing a witness’s
motivation to testify for or against the accused or the State is a proper and
important purpose of cross-examination, and parties are allowed great latitude to
show “any fact which would or might tend to establish ill feeling, bias, motive and
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animus on the part of the witness.” Carpenter v. State, 979 S.W.2d 633, 634 (Tex.
Crim. App. 1998). Texas Rule of Evidence 613(b) allows a party to impeach a
witness “by proof of circumstances or statements showing bias or interest on the
part of such witness” in specified circumstances and subject to other evidentiary
rules.
But a trial court has broad discretion in limiting cross-examination of
witnesses in a criminal prosecution “based on concerns about, among other things,
harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive
or only marginally relevant.” Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App.
2010) (quoting Van Arsdall, 475 U.S. at 679). To be admissible, the proponent of
the evidence must show that the evidence is relevant by demonstrating that a
nexus, or logical connection, exists between the witness’s testimony and the
witness’s potential motive to testify in favor of the other party. Woods v. State, 152
S.W.3d 105, 111 (Tex. Crim. App. 2004); Carpenter, 979 S.W.2d at 635. The trial
court does not abuse its discretion by excluding impeachment evidence when the
proponent fails to establish this logical connection. Irby, 327 S.W.3d at 153–54.
B. Any error was harmless
Appellant argues that his defense counsel at least had the right to ask Serena
preliminary questions to lay the predicate to show her bias against appellant. As an
initial matter, the State argues that appellant failed to preserve the issue for appeal.
Additionally, the State argues that even if the issue was preserved and the trial
court erred in limiting defense counsel’s cross-examination of Serena, any error
was harmless.
On cross-examination, Serena testified that she previously lived with
appellant, and that appellant is the boss and friend of Robert Garza, her ex-
boyfriend. Defense counsel then asked Serena whether she had ever taken items
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that belonged to appellant’s daughter. The State objected to the relevance of this
inquiry, and appellant’s trial counsel responded that it was for impeachment. The
following discussion took place at the bench:
The Court: Correct me if I’m wrong, but under [Rule] 608 you
can’t impeach with specific acts of misconduct unless you -- unless --
you just don’t go into specific acts of misconduct for general
impeachment purposes unless they are a felony or a crime of moral
turpitude resulting in a conviction, a felony or a misdemeanor
conviction.
[Defense Counsel]: Well, we’re trying to show her motive,
Judge.
The Court: Well, you can do that to some extent; but do not just
-- that’s why I asked you guys to come up here so you can express it
very, very carefully.
[Defense Counsel]: Okay.
The Court: And we’re not -- excuse me, one more thing. We are
not going back, day by day, to the beginning of time.
[Defense Counsel]: I understand. Thank you, Judge.
Upon resuming cross-examination, defense counsel asked Serena which of
appellant’s daughter’s belongings she had taken to the pawn shop. The State again
raised a relevance objection, and the trial court asked defense counsel to make a
proffer of the evidence he intended to use for impeachment purposes that did not
constitute a felony conviction or a misdemeanor conviction for a crime of moral
turpitude. Outside the presence of the jury, defense counsel made the following
offer of proof:
[Defense Counsel]: Judge, we intend to show that she knows
Mr. Brown. In fact, she is trying to extract payments and money from
him, that in the past she has stolen things that belong to him and his
daughter, has taken them to pawnshops, has asked his wife not to
report her to the police. And that --
...
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Anyway, we think it’s proper cross-examination to show her motive.
And part of the claim she’s making against Brown is a civil matter
involving the injury is why she went and sought medical help a few
days after the incident.
The Court: Is there some lawsuit that’s been filed or
something?
[Defense Counsel]: Just --
The Court: Is that a “yes” or “no” or “I don’t know”?
[Defense Counsel]: I don’t know.
The Court: Okay. If you’ve got something that shows -- we’re
not going to go into the facts of somebody’s -- something that does
not apply directly to bias or prejudice by a witness against someone.
Now, if you -- and you are going to have to be able to prove it because
it’s just -- ask straight-up questions and not just general da, da, da, da,
da type of questions. You cannot -- they have to be very, very specific
and very, very careful. We’re not just going to run out all the laundry
that may exist in the world.
[Defense Counsel]: I understand, Judge. I’ll take up a different
line.
Defense counsel did not pursue further cross-examination regarding Serena’s
motive to testify untruthfully.
Appellant acknowledges that the trial court’s admonishments “did not
clearly constitute a ruling on a particular question” but argues that the court’s
comments imply that unless defense counsel knew whether the witness had filed a
lawsuit and was prepared to prove it, he would not be permitted to question her on
that issue. Appellant also argues that he preserved error by his informal offer of
proof. See Tex. R. Evid. 103(a)(2); Sansom v. State, 292 S.W.3d 112, 118 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that “error is preserved
when defense counsel states the subjects on which he intends to question the
witness”).
The State concedes there is “no legal requirement that the proponent of
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impeachment evidence must be able to prove the proffered line of cross-
examination,” but nevertheless asserts that error was not preserved because the
trial court did not expressly prohibit counsel from exploring the subject matter
raised in the offer of proof and it did not sustain the State’s relevance objection.
To preserve a complaint on appeal, Texas Rule of Appellate Procedure
33.1(a) requires both the presentation of a complaint to the trial court and an
express or implicit ruling. Tex. R. App. P. 33.1(a). We note that defense counsel
did not expressly articulate to the trial court that that he was entitled to question
Serena under either the Confrontation Clause or Rule 613(b), but counsel did make
an offer of proof and request cross-examination for the purpose of exploring
Serena’s “motive” in testifying against appellant. Assuming without deciding that
defense counsel sufficiently informed the court of the nature of his request, and
further assuming that the trial court abused its discretion by implicitly overruling
the request, we will consider whether any error by the trial court harmed appellant.
A violation of the Confrontation Cause is subject to a harmless error
analysis. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing Van
Arsdall, 475 U.S. at 684); Tex. R. App. P. 44.2(a). In the context of improper
limitation of cross-examination, the Texas Court of Criminal Appeals applies Van
Arsdall’s three-pronged test. Shelby, 819 S.W.2d at 547; Sansom, 292 S.W.3d at
121. First, the appellate court must assume that the damaging potential of the
cross-examination was fully realized. Sansom, 292 S.W.3d at 121. Second, with
that assumption in mind, the appellate court must review the error in connection
with the following factors: (1) the importance of the witness’s testimony in the
prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points; (4) the extent of cross-examination otherwise permitted; and (5)
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the overall strength of the prosecution’s case. Id. Finally, in light of the first two
prongs, the appellate court must determine whether the error was harmless beyond
a reasonable doubt. Id.
Accordingly, we assume that the jury was fully informed that Serena had
previously stolen and pawned items from appellant’s household and was motivated
to testify in the State’s favor to potentially recover money damages in a civil
lawsuit against appellant. Although Serena’s testimony was important to the
State’s case, it was not essential because it was largely cumulative of Jeremy and
Brandon’s testimony that appellant opened the passenger door and kicked inwards,
striking Jeremy’s face and Serena’s hand.
Appellant contends, however, that Serena’s testimony was “vital” because
the State’s other witnesses did not know of her alleged injury until after the kick
and could not testify to whether it hurt her. However, even without Serena’s
testimony, the jury could have reasonably inferred that appellant’s kick caused her
pain based on the witness testimony that appellant kicked Serena in the hand and
the medical records indicating that Serena suffered a sprained thumb. See
Wawrykow v. State, 866 S.W.2d 96, 99–100 (Tex. App.—Beaumont 1993, pet.
ref’d) (holding that any rational fact finder could have inferred that blows from the
appellant’s fist to the complainant’s head caused her physical pain even though she
did not specifically testify that appellant cause her pain); Goodin v. State, 750
S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (holding that
evidence of bruising and muscle strain was sufficient to establish that the victim
suffered physical pain because “[p]eople of common intelligence understand both
physical pain and some of the natural causes of pain”).
Appellant also points to conflicts between Serena’s and Jeremy’s testimony
concerning whether Starla was in the front seat or the back seat of her car when
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appellant grabbed her keys, and questions how Serena could have could have
sustained an injury to her left hand if her thumb was pointing down while she
reached around from the back seat to cup Jeremy’s face in her hand, as she
testified, when Brandon testified that the kick impacted Jeremy’s lip. Appellant
further posits that the case against him was “not especially strong” and, if the jury
had been informed of Serena’s bias and interest in a lawsuit against him, the jury
may have chosen to believe appellant’s witnesses over the State’s witnesses. Even
excluding Serena’s testimony, however, the jury heard compelling testimony of the
altercation from Jeremy and Brandon, both of whom testified consistently on the
material points that appellant drove after them in an erratic manner, opened the
passenger-side door of Brandon’s car, kicked Jeremy and Serena, and threatened to
shoot them. The jury also could have taken into consideration Officer Rodriguez’s
testimony that appellant made a threatening remark to him over the phone and did
not appear to have suffered any defensive wounds.
We conclude that any error from the trial court’s limitation on appellant’s
counsel’s cross-examination of Serena was harmless beyond a reasonable doubt.
We overrule appellant’s second issue.
CONCLUSION
We overrule appellant’s issues and affirm the trial court’s judgments.
/s/ Ken Wise
Justice
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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